CE/4b

CONFERENCE OF GOVERNMENT EXPERTS ON

the Reaffirmation and Development of

International Humanitarian Law Applicable

in .Armed Conflicts

Geneva, 24 May -12 June 1971

IV

RULES RELATIVE TO BEHAVIOUR OF

COMBATANTS

Submitted by the

International Committee of the Red Crosl

+ Geneva

Jannary 1971

CONFERENCE OF GOVERNMENT EXPERTS ON the Reaffirmation and Development of

International Humanitarian Law Applicable

in Armed Conflicts

Geneva, 24 May - 12 June 1971

IV

RULES RELATIVE TO BEHAVIOUR OF COMBATANTS

Submitted by the

International Committee of the Red Cross

Geneva January 1971

v......

5 1989

CE/4b D-1181b

CON TEN T S

Pages

I INTRODUCTION 1

II RULES RELATING TO OF COMBATANTS

THE BEHAVIOUR

1) Limitation as to the of harming the enemy

choice of means 5

2) Prohibition of the use of means to cause unnecessary suffering

calculated 6

3) Prohibition to kill who has surrendered

or wound an enemy 7:

4) Prollibition against declaring that shall be no quarter

there 10

5) Prohibition of perfidious means 12

6) Prohibition against making improper use of internationally recognized emblems 13

7) Prohibiting the uniform and the

improper use of the insignia of the enemy 15

8) Spies and saboteurs 16

III DOCUMENTARY ANNEX (contents) 01

I N T ROD U C T ION

In its June 1969 Report on Reaffirmation and Develop­ment of the L~ws and Customs Applicable in Armed Conflicts 1/, the Internat~onal Committee of the Red Cross (ICRC) made the following point, among others : ­

"Humanitarian law should extend to every aspect of armed conflict, whether the choice of weapons and the use to which they are put, or behaviour in combat There is, of cuurse, no question of opposing the violence employed by combat~nts to disable the enemy, sometimes to the limits of their strength. It is a question of avoiding the viOlence which exceeds this aim and entails useless suffering. It should be noted that such abuses add not only to the difficulty of reverting to peace, but to that of mutual recon­ciliation. The Red Cross always starts out from the idea that an armed conflict presents an exceptional and extreme situation; it also knows by experience that those who are impelled to hate and fight each other in such circumstances are led not only to resume normal relationships once peace is restored, but sometimes even closely co-operate."

1/ Report submitted by the ICRC to the XXlst International Conference of the Red Cross (Istanbul, September 1969) and which will hereinafter be referred to as the "Report of the ICRC on Reaffirmation".

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The Red Cross concerns itself chiefly with the plight and the treatment of those who are hors de comb~t.

Nevertheless, any study it may undertake in the spirit alluded to above with respect to the reaffirmation and development of laws applicable in armed conflicts must inevitably deal also with the rules of international law which govern the behaviour of the combatants toward each other and toward non-combatants. This concern is all the more justified in that observance of these rules will often prove decisive with regard to the situation of the very persons the Red Cross is intended primar­ily to aid. For example, in a given conflict, all the rules set up by the IIII'd Convention of Geneva concerning the treat­ment of prisoners of war become meaningless if the belligerents decide a priori that there will not be any prisoners and if the enemy who surrenders is iwnediately executed.

Regarding behaviour, there are certain fundamental rules which were expressed in the Regulations appended to the IVth Convention of The Hague of 1907 1/, but which are con­sidered as having become customary law applicable in all circumstances. This document is intended to review that series of rules and to examine the extent to which it is desirable to reaffirm them and to make them mort:] explicit.

The problems raised by the behClviour of combatants toward the civil population are more particularly explored in the document devoted to the protection of civil populations against the dangers of hostilities. As for the complex aspects of behaviour in guerilla w~lrf':'.re, these Qre treated in greater detail in the dccwnunt concerning that form of struggle. In the present documJnt,therofore, the rules relative to behaviour are considered from a wholly general point of view.

1/ In the annex (pn.ge012) will be found the provisions of The Hague Regulations with regard to this subject.

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A reconsideration of those regulations has become imperative, for three reasons in particular:

they have frequently been violated in th~ armed conflicts which have ch&racturisud tho XXth Century, to such an extent that at times their validity has bcen questioned, and their underlying r82oson:3 h;:wo no longGr been discernablG;

since the time when they found expression in the Hague Rugulcltions, the; int<Jrn;~;_tiollal community has grown considerably. Evcm if th.J,y ~l.re coneidurud as part of customary law, tlwy mo.y, by th~::.t vury fact, be disadvantaged by the: reserved :':tttitude Gometime;s assill1ed by thG ne1>[ States with respect to int0rnutional customary law;

lastly, in contrast to oth~r rul<Js of The HaguG Conventions which have been taken up ,J.gain and made more specific in subsuquent cOfl\nntiono (Gc.Jrleva Convuntions, Convention on Cultural Property, Protocol of Geneva), the rulus relating to behaviour have not been instilled with renewed vigour by incorporation in nU\i>j texts of internc,"tional law. Whathur or not a revision is made of The HaguG Regulations as regards its stipu12tions which have not already been taken up in othi:Jr humanitc:~rian convuntions - and on this POL1t we ~efer the reader to the general considerations set forth in the document c;rJ.ti tIed "Introduction" - the ICRe considers it timely to hc~ve these Ilmdam(;;ntal rules recast some day soon, in one form or anoi;hl;;r 7 in 3. nel'1 instrumcmt of interna.tional 10,1'7 to \\Thich all the; States could adhore explicitly.

In particulo'r, the ICRC has submitted these rules to the thorough scrutiny of the Gxperts it convened in February 1969, and it has summariz0d their opinions in its report for th~ Istanbul Conference rcfcrred to above. On the basis of that report y the matt,3r -\'TCi.S tctbm up and developed by the Secretary-Genural of tho Unitud Nations in his second report on Respect for Huma.n Rights in Armud Conflicts. 1/

1/ This document (A/S052) of lS Soptember 1970 will here­inafter bu referrud to as "Sucor..d Report of the Secretary­General" .

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Consequently, in order to facilitate the study of the views and proposals dovelop0d in this document as regards oach of thoso rules, extracts from the reports of the ICRC and of the Secretary-General on thesu matters are appended horato.

In carrying on its work for thu development of intornQtional humanitari2n law, pursuant to Resolution XIII of tho Istanbul Conference, the International Committee has oriented its principal endeavours toward areas of the law of armed conflicts other than the one which is dealt with in this document, bocause it felt, among other reasons, that this latter domain was specifically one which called for the observations of governmcmt:J.I and milit8.ry experts. Until the Conference of Governmental ExpGrts h2s been hold, it will, for its part, continue its studies covering curtain aspects of these rules of behaviour. so that it may bo in a position to submit more concrete proposals with regard to soms of -these points.

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RULES REIJA'rING TO THE BEHAVIOUR OF COIVIBATANTS

1. Limit~tion as to the choice of means of harming the enemy

Report of the ICRC on Reaffirmation, page 75 (see annexes, page 01)

As this report point~d out, the principla accord­ing to which "the right of bellip~eronts to adopt means of injuring tho enemy is not unlimited" (The H0gue Regulations, Article 22), ~3.S reo.ffirmcd by the XXth Inturnational Conforence of the Red Cross and by the; General- ASt"3cmbly of the Unitad Nations on 19 December 1968, applies not only to attacks by air, but al$o to tIw b8haviour of the combatants on the battle­field. As an essiJntial basis Ul1derlying the law of war as such, also co.lled thu lo:w of 'rhG HaguiJ, its validity remains unimpaired to this day.

When a Statu has rocourse to force, whether or not it is legitimate to do GO, this rocourse is simply a means for it - the ul"timatd means - to compol a.Ylother Stato to submit to its will. Such recourse to force must never be an end in itself. It will consist in employing the constraint necessary to obtain that result. Any violence reaching beyond this aim would prove useluss and eruel. Thu principle of humanity enj oins that cc~pture is to be preforred to wounding, and wounding to killing; that the wounding should be effectuated in the least serious manner - so that the wounded person may be treated and may recover - and in the least painful manner; that the captiVity should be as bearable as possible, etc. 1/.

1/ See also Article 4 of the International Covenant On Civil and Political Rights, and Article 15 of the European Convention of Human Rights, which says "'tvithin the strict limits requirod by the situation".

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Although military necessity can authorise the employment of all lugal means, it cannot justify going beyon~

this by resorting to fieans which would not be in conformity with the laws of armed conflict.

To concludo, the principle recalled at the beginning of this heading, a groat achievement of the Conventiom of The Hague, should be maintained or reaffirmed.

2. Prohibition of the use of means calculated to cause unnecessary suffering.

The Hague Regulations (Article 23, letter e) state as follows: "It is forbidden to employ arms, projectiles or material calculated to causu unnecessary suffering".

This rule, which derives from the aforementioned principle, likewise appears to have retained its validity for today's world. It was with a viuw to impart substance to this general standard that certain special declarations have been signed forbidding explosive proj8ctilus (St. Petersburg, 1868), asphyxiating and poisonous gases (The Hague, 1899), and "dum­dum" bullets (The Hague, 1899). Article 23 of the 1907 Regulations expressly prohibited poison and poisoned weapons (letter a).

It is a qUGstion of sparing even combatants from injuries to no purpose or from sufferings which exceed what is necessary to put the adversary hors de combat. To this end, the combatants must forego the use of certain weapons or certain methods of warfare. The rule evidently leaves a rather broad latitude for evalu2tion.

In conclusion, it appears that there too The Hague rule should be retained. But since it covers explicitly only arms, projectiles or material, might it not be given a more general scope by extending it to take in all means or methods calculated to cause unnecessary suffering ?

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3. Prohibition to kill or wound an enemy who has surrendered.

Report of the ICRC on Reaffirmation, pages 76-78 (SU8 annexes, pages 02-04)

Second Report of the Secretary-General, para 104-107 (see annexes, pages 09-010)

The Hague Regulations, in Article 23, c, decrees: "It is forbidden to kill or i<lound an enemy who, having laid down his arms or no longer having means to defend himself, has surrendered unconditionally."

In the abovementioned ~eports, the question has been raised whether Tho Hague rule (which is only implicit in Article 4 of the IIIrd Gen8va Convention) ought not to be made more specific, in particul~r by indicating in concrete terms how .0. combatflnt CCln make known his intention to surrender. The case of avio.tors in distress who 2.re duscending by parachute should be the subject of a new provision, since this cass, now occurring frequ~ntly in practice, had not yet presented itself in 1907. The experts consulted were of the same opinion.

r~ree situ~tions can be distinguished :

a) automatic surrender: the military personnel are hors de comb2t, all resistance having come to an end, or they lie wounded on the field of battle tnkun over by the adversary;

b) surrender by indication of intention : the enemy forces raise the white flag, advance with hands in the air or weapons held Over their heads, or open the turret of armoured tanks,etc.;

c) circumstantial surrender : an armed force is reduced to actual powerlessness by being outclassed, often at a distance. Here the individual case is transcended. The troop which holds, or believes that it holds the adversary at its mercy should propose (directly or by radio, etc.) that the latter surrender, this being accepted or refused.

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In the cases referred to under b particularly, the moment of surrender may be delicate, for, especially 1-rhen the front is ablaze, it is not always easy to cetect a willingness on the part of the enemy to surrender. If the firing from the opposite side ceases, it is an indication, but not a proof: it may possibly be a legitimate ruse or stratagem of war. If the white flag appears, it is the sign of intention to suspend the combat, at least for a time. The stratagem is no longer tolerated; it would become a perfidious act. The troop will cease firing, but will remain on guard. The nature of the s i tuation will be shown by vIha t comes next : either it is a bearer of a flag of truce who advances, or the combatants come forward with their hands in the air. In both such cases, firing is prohibited. If the combatants come armed, they can be ordered to throw down their weapons; if they fail to do so, firing is allowed, but only to the extent required to obtain obedience.

It should be noted that. in case of surrender, safeguard is unequivocally due to the prisoner. Later on, the captor will be able to institute the requisite checking; he may possibly take the repressive steps authorised by law, if it is proved that he has to do with war criminals or irregular combatants, unless those giving themselves up have been promised immunity at the time of surrendering.

As we have stated, the case of ainnen in distress descending by parachute requires exhaustive study, for it has not been covered by any written rules. But there does exist a common-law rule : occupants of an aircraft in distress who para­chute down to save their lives shall not be attacked in the course of their descent or upon landing. unless they manifest a hostile attitude.

Some experts have raised a question in this respect. They admit the legitimacy of an attack if the aviator leaping by parachute would be landing on territory dominated by the army of his own country; most of the teachings of the publicists hold that such a view is incompatible with humanitarian principles.

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The case of occupants of a plane in distress should not be confused ~Tith the radically different one of armed troops launched by parachute for some offensive purpose (attack against the rear lines, or a mission of sabotage or intelligence). Admittedly these solJiers can be attacked, even before they have reached the ground.

In this state of affairs, it is therefore essential that the aviators who seek to save their lives be recognized as such. This ·will be easy when they leap from a plane in distress. On the ground, their attitude "l-'7ill make clear their intention to surrender. On the other hand, if they make use of their arms, or if they take to flight, it would be reason­able to allow that they would not be fired on, in so far as possible, without prior warning.

The distinctioll will be less easy to make during the descent. The fact that it takes place during the daytime - at night it is not detectable - will constitute a strong preswnption of harmlessness of intent, as will the absence of weapons. The individual involved should always be given the benefit of the doubt. Once the descent has been spotted, it will be signalled, so that the capture of the parachutist sQoner or later should not present any insurmountable obstacle.

To be sure, sometimes an armed force has been known to recover ~ fallen aviator by force. In itself, that does not obviate the immunity of the parachutist, who might be Hounded or· miCht have surrendered, but he may become the stake vf the combat and could in that way be exposed to certain actual risks. If he seeks to flee, his situation is analogous to that of the prisoner who tries to escape.

In conclusion, it may be asked whether The Hague rule, while being retained, ought not to be given more specific content, especially by indicating in concrete terms how a combatant can make known his intention to surrender.

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As for the particular case of aviators in distress, it seems that provision should be made that "the occupants of an aircraft in distress who leap by parachute to save their lives shall not be attacked in the course of their descent or on the ground, unless they manifest a hostile attitude".

4. Prohibition against declaring that there shall be no quarter.

Report of the ICRC on Reaffirmation, pages 78~79

(see annexes, pages 04-05)

Second Report of the Secretary-General, para 108­(see annexes, page 010) 110

The Hague Regulations provide, in Article 23 d: !'It is prohibited ... to declare that no gua.rter will be given",

The Report of the ICRC considers that this rule, which should be maintained, could be couched in less outmoded form and in more concrete terms, As for the report of the S~cretary-Genera19 it advocates substituting in its place an express provision proclaiming in adequate fashion the respect for the lives of combatants who lay dOvTn their arms. It can, however, be stressed that the endeavour has been to prevent threats of ~assacre, since massacre itself is already categorically prohibited.

Inde(~d, the rule under consideration, which looks toward the safeguarding of the enemy who surrenders, is relate~

to the one treated under the preceding heading. This latter necessarily implies the prohibition of refusing quarter.

To declare that no quarter will be given signifies that the str~ggle will be carried on to the bitter end, as they used to say, in other ~vords, until deat.h ensues, or, as it is put more simply now-a-days "that no prisoners will be taken".

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If we refer to past practices, we find that the most frequent example would occur during the siege of a fortified place : the garrison was called upon to surrender in shbrt order, failing which, once the resistance was overcome, the survivors would be put to death with surrender no longer being accepted. More recently, certain declarations of leading cadres have been encountered, stating that such and such a category of the enemy forces would be "liquidated" (irregulars, commandos, mercenaries, etc.).

Refusal of quarter is a measure of intimidation, meant to pressure the enemy into an early surrender, and it mayor may not produce the calculated effect. But that is not the question: the declaration itself must be proscribed. There are a number of reasons for this. First, because a fortiori it is contrary to the rule of safeguard of the enemy who surrenders; next, because it tends to distort the arbitran18nt of war by resorting to a particularly cruel and unfair tactical lin~ of action; bucause it falls into the same category as reprisals and collective punishments; lastly, because it incit8S the opposing si. ~e to employ methods of a similar type, and in this way the struggle may degenerate to a hateful, implacable and inhuman level, making the restoration of peace all the more difficult.

Whereas in 1863 Francis Lieber still considered that the belligerent who gave no quarter could expect to be given none, the general principles of law no longer leave room for such a line of thought in our d~ys. Quite the contrary, the refusal to give quarter by one of the armies does notlegitimat8 a refusal of quarter by the opposing army. The humanitarian Conventions are not subject to the clause of reciprocity. But thos~ who are guilty may have to answer for their misdeeds before thu tribunals.

In conclusion, the principle of The Hague must be maintained. If it were sought to couch it in more concrete terms, better adapted to our epoch, we might, for example, say: "It is forbidden to decide that th8re will be no survivors or that no prisoners will be taken, to threaten the adversary therewith and to conduct th~ struggle in terms of such a decision."

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5. Prohibition of perfidious means.

Report of the IORO on Reaffirmation 1 pages79-81 (see annexes 1 pages 05-07

Second Report of the Secretary-Genera1 1 para III (see annexes 1 pages 010-011)

The Hague Regulations provide (Article 23, b) that "it is forbidden to kill or wound treacherously individuals • belonging to the hostile nation or army". However 1 Article 24 states : "Ruses of 1V8.r and the employment of measures necessary for obtaining information about the enemy and the country are considered permissible."

The IOR.e Report stressed how fundamental it iS 1 if it is sought to prevent conflicts from degenerating, for the armies confronting uach other to observe a certain reciprocal loyalty. From a rractic~l point of view 1 the Report advocated maintaining Th\:) ~i[).gue rule 1 ::.md at the samE; time distinguishing more specific~lly butween the acts of perfidy (or .of tr0ason 1 2ccording to th,,,, somGHh~;.t incorrect terminology of 1907) which are prohibihod, 8.nd the rus(Js or stratagems of 'Nar which are permitted 1 even if such a distinction is not always easy to make. Purhaps st least an illustrative listing should be und8rtaken.

Purfidy co.r,ststfJ in decuiving the enemy 1 in breaking fai th Hith h.im, so CtG 1;0 Cl.l.t him down thereafter \vith impunity. GenGrally Gpi.J:.Ling ~ on,~, ~LS piJrfidious if h8 improperly appeals to th8 promise extGndcd by the adv(Jrsary, to his good sentiments or to an agr00El0y:.t rucLch ...;ct, ~vi th th", aim of obtaining a sub­stllntial mili tJ.ry adV~-lnt8.ge over him.

As h::-tS b,c:un suun, l1:; lS ~30mutimus difficult to trace an exact line between perfidious acts and ruses of war. Hence) it becomes necessary to m~ke use of examples taken from practice.

In this waY1 it is legitimate to make a surprise attack, to simulate a retreat 1 to camouflage one's

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installations or to construct dwruny oquipmunt, to lay an ambush, to utilisG thu enGmy tulGcommuniccc.tions or to issue false messages, to incite the 2dvorsary forces to surrender, to desert or to mutiny. It is likuwise permissible to have recourse to the forcGs of nature against the antagonist fire, flood, avalanches. Rusus or stratagoms aro a far from negligible portion of the art of war.

On the other hand, it is not legitimate to attack under cover of a truce or across a demilitarised territory, to rofusu, to carry out tho t8rms of a capitulation or of an armistice, to Gimulate surrender and then to opun firo, to mak8 an untruthful announcement that an armistice has beon concluded, to put a price on the head of an enumy luader. We have dealt elsewhere with the use of poison. Under the heading which follows we shall take up the prohibition against utilising the rocognized protective emblems as well as the insignia of the enemy.

In conclusion, according to the ICRC, it would be desirable to make a butter definition between acts of perfidy and ruses of war, doing so perh2ps by a listing which would be at least illustrative.

6 • Prohibition :;.gainst lnr,king iItlprOper use of internc::,tionally recognizud emblems.

Report of the ICRC on Reaffirmation, pages 79-80 (soe annexes, pqges 03-04) Second Report of the Secret~ry-Genural, para. 102 (seG annoxtJs, pago 08)

Articlo 23, f of The Hngue Rogul~,tions st8.tes : "It is forbidden to mako impropor use of a flag of truce as well as tho distinctive badgos of tl1u Gl;.;nuva Conv,mtion."

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The internationally recognized signs are the flag of truce y or white flag y the emblen, of the red cross on a white ground (red crescent~ red Ij_on-and-s~n for the countries employing them), to which should now be added the blue and white escutscheon created in 1954 oy the Convention of The Hague for the protection of cultural property,

The white flaG is the symbol of surrender and it is also the sign hoisted when b~8 party wishes to ~arley with the adversary. Irl this I'ray, it v:il1 bEO '..,',,:,;d, for example, when a party desires to ask for a truce, to propose the ex­change of prisoners or the eVciCU::-l tion of civiJ_iaEs;, to call attention to the violation of Rome pr07ision of a convention. The use of the flag of truce j_s not authorised! in particular] for purposes of espionage, or tD disSllDulate a rnilj_ tary movement, to threaten an unlawful act and. in general, to cover any act of perfidy. Its abuse is serious, for it compromises the chances for its further use and even the chances of peace.

The '~Thite f18g is nor)Yn-.ll-~\' ~o~cco::J2:)anied by a cease fire. But the right to parley c2.nnot be called for <'l,t any arbitrary moment. The party to ~hom the question is put is the judge of the tjJIlelines:3. He 1,:i=-1 ~lOt grant j_ t in the midst of an attack. But 8.. valid reaSOll i~; re'1uirsd for refusing the parley 11.

While the flag of truce js l~~cil~ed for parleying y

the sign of the ~ed cross is intended for t~e prOViding of relief. It must be rr-::spected in all c:~rc1--'1!l8tcX:,Css and its usc

1./ Chapter III of The J:-lagu8 Regul"ttioEs (Articles 32 to 34), with which we have no ~eed to dsal h~re, sets forth the procedure relative to bearers of ~hE fl·~g of truce. Never­theless, these provisions wi~l be found appended hereto, since they provide in particular (~rtic~s 32) for the white flag y and it is precisely the ioproper U~0 of this flag which is examined above.

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must be strictly reserved to promotion of the humanitarian aims for which it was created. The 1st Geneva Convention of 1949 contains provisions intended to eliminate abuses of the sign. But it may be pointed out that n2tional legislations for the application thereof have chiefly envisaged curbing the commercial abuses. B8 th;1.t as it may ,what must be eliminated, above all, is any abuse of the sign of protection in time of armed conflict, and especially acts of perfidy which might be perpetrated under its coveY. Great humanitarian interests are involved in this, for abuses of such nature might lead ~o rendering it ineffective to protect persons making legitimate use of it and, as a result, weakening the value of the emblem and the high significo.tion it should retain in all circumstances.

In conclusion, it would be desirable to maintain the provision of The Hague Regul~tions and even to strengthen it, particularly by providing severe penal sanctions against on perfidious abuses of the protective sign of the red cross.

7. Prohibiting the improper~~f th~~iform a~~the i~3igniQ

of the enemy.

Report of the rCRC on Reaffirmation, pages 80-81 (see annoxes, pages 06-07)

Second Report of th~ SecrGt~ry-General, para 103 (see annexes, page 09)

Article 23, f of the Regu12tions of The Hague decrees: "It is forbidden ... to mo..ku improper use of ... the national flag or of the milit~ry insignia and uniform of the enum:v "

Hence, it is not admissible for a force in combat to make u.se of the colours or the insignia of the en8my.

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Thus, for example, it will not be allowable to return a captured tank to the field of battle without having modified its national emblem. It appears that the rule should be maintained as it stands.

Wearing the enemy uniform is likewise prohibited by the text of The Hague, which is asclear on this point as on the others. Nevertheless, a part of publicists' teachings considers that the enemy uniform can be worn prior to combat, as a sort of acceptable ruse or stratagem. But the wearing of the opponent's uniform could not be tolerated dlITing the operations themselves. One tribunal made a ruling along the same lines in connection with the Skorzeny case. Doubtless what is to be seen in this is comparable to the rule in naval warfare, where it is possible to make use of the enemy flag, on condition that it is lowered before the first cannon shot. Should the text of 1907 be modified or made more explicit in this respect so as to avoid divergent interpretations ?

8. Spies and saboteurs

This point was not treated, either in the reports of the ICRC for Istanbul or in those of the Secretary-General of the United Nations. Nevertheless, it is a sector in which precise detAils would be welcome. Fairly frequently, in fact, acts of espionage and of. sabotage are legitimate acts of war and in no .case can their author be held penally responsible.

It is appropriate to note that Articles 5 (derogations) and 68 (death penalty) of the IVth Geneva Convention expressly mention espionage and sabotage, but fail to give ~ny definition whatsoever of them.

As for espionage, a definition of this is given in Articles 29, 30 and 31 of the Hague Regulations 1/. This

1/ See the appended text of these provisions.

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definition was deemed outmoded by many experts and it was found that most of the ordinary or military penal codes give a far broader definition of espionage. Hence it is proper to ask whether The Hague Regulations should be revised or completed on this point, in the light of the modern forms of combat. Such a definition is important, since it makes regular combatants out of certain persons.

In the matter of sabotage, there is no definition to be found in positive international law. However, it is qUite clear that when it is effectuated by military personnel in uniform, even if they are camouflaged, this constitutes a legitimate act of war and cannot be punished criminally. In that connection, for example, it will be recalled that the Nuremberg Tribunal judged contrary to law the order given by leaders of the IIIrd Reich to destroy the members of commando units who might be captured, without granting quarter and without making them prisoners.

In conclusion, perhaps it would be appropriate, in this case also, to provide a definition of what is to be under­stood by sabotage within the meaning of Articles 5 and 68 of the IVth Geneva Convention.

D OC U M E NT A R Y A NNE X

CE/4 b D-O-ll8l b

DOCUMENTARY ANNEX

CONTENTS

Page

I. Extract from the Report of the ICRe to the XXlst International Conference of the Red Cross, Istanbul, 1969, "Reaffirmation and Development of the Laws and Customs applicable in Armed Conflicts". Ol

II. Extract from the Report of the Secretary-General of the United Nations "Respect for Human Rights in Armed Conflicts". Doc. A/8052, XXVth Session of the General Assembly 08

III. Extract from the Annex to the IVth Hague Convention of October l8, 1907, Regulations concerning the Laws and Customs of War on Land (Articles 22 to 34)

Ol2

01

ANNEX 1

Extract of the Report of the ICRC to the XXlst International Conference of the Red Cross, Istanbul, 1969, "Reaffirmation and Development of the Laws and Customs applicable in Armed Conflicts".

C. BEHAVIOUR BETWEEN COIlBATAlJTS

The genoral problem

Humanitarian lcnv should extend to every aspect of armud conflict, whether the choice of w8npons·and tho use to which thoy 8.re put or behaviour in combat. Certain norma aff8cting relations bet,'leen combatants themselves should thereforG be examined hero. Thero is of course no question of opposing the violence employed by combatants to disable tho enomy, sometimes to the limits of their strength. It is a quostion of avoiding the violence which exceeds this aim and entails useless suffering. In this sphere likewise it is a matter of limiting certain forms of suffer­

·ing and particularly excoss of cruulty. It should be notGd thnt such abuses add not only to tho difficulty of reverting to poaco but of mutual reconciliation. Tho Red Cross always starts out from the id8a that an armed conflict presents an exceptional and extreme situation; it also knows by experience that those who are impelled to hate and fight each other in such circumstances are led not only to resume normal rolationships once peace is restor­ed but sometimes oven closely cooperate.

The basic rules concerning behaviour between combatants are mainly formulated in Articles 22 and 23, b), c), d) and f) of The Hague Regulations ; these prov~s~ons are considered to have the value of customary rules. Their significance in contemporary forms of armed conflicts may be questioned. IJIoreover, on too many occasions during the Second World War, as in recent conflicts, combatants have appeared to be inSUfficiently familiar with these rules. This concerns the Red Cross.

02

The general principle established by Article 22 of The Hague Regulations and reaffirmed in the U.N.O. Resolution of 19 December, 1968, according to which belligerents have not unlimited right to adopt means of injuring the enemy, also applies to behaviour during combat. It is developed in the fundamental rules in Article 23, referred to above, which were examined during the discussion.

The experts' opinion

The great majority of experts, although having had no opportunity to discuss the matter at length, declared themselves favourable to a reaffirmation of the above rules; a form and wording better adapted to present conditions would endow them with their full value.

1. Prohibition to wound or kill the disabled

enemy

The problem

The rule in Arti.cle 23, c) "it is forbidden to kill or wound an enemy who having laid down his arms or no longer having mean8 to defend himself has surrender­ed lillconditionally:" is implicitly understood in tho IIIrd Geneva Convention concerning the tr3atment of prisoners of war.

In view, however, of the very general terms of that Convention (Article 4) ("Prisoners of war •.• are persons ••• who have fallen into the pOvrer of tho enemy"), the ICRC wondered whethor there might not bo advantage in reaffirming the present rule and even completing as an indication, it by specific cases of practices it prohib­its; WOllld it not also be of interest to define cases in which a oombatant can clearly make known his intention to surrender? The plane in distres8 1,;-hose crew lands by parachute to save their lives is a particular case which should be clarifiod.

03

The experts' opinion

The experts replied in the affirmative to the questions raised by the rCRC. Their discussion mainly centred round tho case of the airman descending by para­chute.

a) In the air: the experts stressed the complexity of the problem. They nearly all agreed to tho distinction, often more difficult to establish in practice than in theory, between the airman in distress and the armed parachutist. According to some, the former should benefit from the rule of quarter, as his situation could be compared to that of a shipwrecked individual, while the latter should be assimilated to a combatant proceeding to attack or in flight, whom it is consequerlt-­ly admissible to take cs an objective. But how far does this analogy extend? and what are the military fact­ors to be considered : the number of 'lair-wrecked 11

their attitude, the nationality of the territory on which they are to land, the military situation of the moment? It is difficult to establish criteria, but it was generally admitted that an airman in distress, cut off, and not employing any weapon, should be respected.

b) On the ground : the experts unanimously considered that, even if an airman had committed acts authoriz­ing qualification as a war criminal, when captured he should be treated as a prisoner of war, without prejudico to regular judgement. It was reminded, how­ever, that, while the legal situation was inarguable, there were difficulties in actual practice : the civil ­ian population may feel savage towards the airmilll who has just bombed it; in this connection, ~ne expert quoted an example of officers.who had watched civil ­ians lynch parachutists without interfering and who had subsequently been condemned by the Courts of the Allied Powers. (1)

(1) Cf. Green L.C., International Law through the Cases, London, 1951, pp. 712-714 : War Crimes Court, Essen,· The Essen Lynching Case (1945), 1 LRTWC 88.

04

International law on the subject, it was said, should develop on the same lines as internal penal law has doveloped. According to the latter, no one is entitIed to take the law into his ovm lands and "to assassinate an tlosassin is an assassination".

2. Quarter (1)

The rule under which "it is prohibited to declare that there shall be no quarter" (Article 23, d)) is implicit in the Geneva Conventions, but it does not appear in specific terms, as these are above all concerned with the treatment of combatants from the time they fall into the hands of the enemy, while the rule in question already applies to the statement of intent.

The ICRC emphasized that'this rule is very important from the humanitarian angle. On the other hand it may be questioned whether its wording is not somewhat outdated and it'should not be reaffirmed in other, more uptodate, terms.

Further, would it not be well (this also applies to the otrler principles examined here) to complete this provision relating to quarter by examples of the gravest contrary practices, as an indication but not to limit? It covers for instance, certain threats sometimes voicGd by tho belligerents to "vripe out" an ethnical group or certain categories of enemies, (threats which are more­over also contrary to the prohibition of genocide sanction­ed by a cpecial Convention concluded under the auspices of tho United Nations).

The experts' advi£!

The experts generally replied affirmatively to the questions put, which they considered in close relation to the rule exominGd under 1. \{hile some were doubtful whether quarter could be granted in exceptional military

(1) The Shorter Oxford English Dictionary on historical prin­ciples, Oxford, 1933, gives the following definition of the "quarter": "Exemption from being put to death,granted to a vanquished opponent in a battle or fight; clemency shnwn in sparing the life of one who surrenders".

05

situations, they ad.;nittGd in gc':d'3.l t}l'lt such c[wes sho-cud be very rare. And even in these it should always be possib18 to spare the lives of persons falling into the hands of the enemy.

One expert desired that the status of persons b~ilty of sabotage should be specifically defined, in order that they also benefit by the rule considered here.

3. Prohibition of treachery

'l'h0 problem

In its preliminary documentation, the ICRC bl'<}L<.ght out two provisions in The Hague Regulations : ~:}:' t of Article 23, b) ( "it is forbidden to kill or wound -:.>_::~c})erously individuals belonging to the hostile nation cr ;_"rl:J.Y"), which is completed and defined under f) "it :'5 :'orbidden to make ir:;proper use of G. flag of truce, ,:."1<:: national flag or military insignia or the uniform of -'::j'; enemy, as well as of the distinctive signs of the h::!'iev::. Convention It •

The ICRC pointed out that it is often C:iff:i c'LLl t -[0 ':lr[~w 3. distinction between what is treachery and wheci. :i:::, :1. ruse of war, which is r::.dmissible(Article 24 of The l-I'lgu.e Regulations). This difficulty has certainly been :LncreD.seQ by some modern methods of combat (commandos, E~~0rilla w~rfare, etc.). Furthermore, as regards wearing enemy uniform, after the Second World War, as is known, [~ Court (1) admitted that this was not illicit with a view to misleading the enemy prior to combat. Should it be concluded that a certain idea of loyalty in war is more in keeping with the period at which the above rules were ('jrafted than with the conditions of our times?

In any event, from the humanitarian standpoint, the three following observations can be made :

- For the red cross emblem, protection against abuses is regulated by the Geneva Conventions; national legislations of implementation have however above all considered the repression of commercial abuses. But what it is most important to prohibit is the abuses

(1) See jUdgment in the case Otto Skorzeny, Law Reports of trials of War Criminals - United Nations War Crimes Commission, H.M.S.Q. London 1949 •

06

of the protective emblem in times of ~rmed conflict, owing to thei~ unscrupulous nature and the importance of the interests at stake. Far from relinquishing the rule in Article 23, f) of The Hague Regulations, would it not therefore be indicated to strengthen it, asked the ICRC ?

- In any event, would it not be advisable to reaffirm specifically tho prohibition of every type of perfidious means, which bar the way to a cease fire and consequent­ly to the diminution of useless suffering or violate the basic laws of humanity? It has frequently been observed that if it is wished_to prevent conflicts from degenerating, the armies facing each other must bohave with a minimum of reciprocal loyalty. For example, the abuse of the truce flag, i.e. the white flag of surrender, compromizes the chances of using it and consequently the chances of peace; similarly, the breach of a local truce, for example, to collect the wounded. Is it possible to reaffirm, regenerate the rules concern­ing the prohibition of perfidy in this light?

- Finally, as regards the wearing of enemy uniform, would it not be judicious to state more precisely the cases in which this is unreservedl;}T prohibited, possibly. in tho sense doriving from decisions of tribunals ?

The experts' opinion

First of all, two suggestions should be mention­ed, one with the idea of replacing the term "treachery" by "perfidy" (1), the other aiming at the- inclusion in all future regulations of a list of the various forms of perfidy which should be completely prohibited.

In general, everything that is perfidious should be prohibited. But, as the experts po~ted out, it is no longor so much a matter of obtaining a spirit of chivalry on the battlefield or an ideal of loyalty, as

(1) The same remark had been made at the 1874 Brussels Conference by a delegate who had pointed out that the term "treachery" could not be applied to an enemy (quoted by Mechelyinck,'The Hague Couvention relating to the Laws and Customs of Land Warfare', Ghant, 1915, page 244).

07

of denouncing everything that can make a return to peace more difficult. Mention was made of Kant's Project for Lasting Peace (1), in which it is said that a humane attitude should be preserved towards the enemy, since othervlise peace could never be re-established. Even if it is not easy to apply some rules strictly, it should at least be seen that means which would close the road to peace are not employed.

The abusive employment of the white flag and above all of the red cross emblem (red crescent, red lion and sun) are among the means which should be pros­cribed. Abuse should not only be prohibited but also involve sanctions, as it weakens humanitarian law.

On the other hand the experts were divided on the question of the wearing of enemy uniform. It was moreover pointed out that neither decisions of tribunal nor qualified publicists were unanimous on this question.

True the judgment referred to above, accord­ing to which it Ivould not be illicit ("improper") to wear enemy uniform prior to combat, corresponds to a custom in maritime warfare whereby the enemy flag may be flown before combat. If however this judgment should be consider­ed to settle the use appearing most in line with the conditions of today, it should be defined, perhaps after thorough study, in a more precise rule. This is necessary to avoid diverging interpretations, which are a source of difficulty, reprisals and consequently of increased suffering.

(1) Kant, Emmanuel, Proj3ct for Lasting Peace ("Zum ewigen Frieden"), 1795, Section 1, Article 6 : "No State at vTar with another sho~J.ld admit hostilities of a nature to render mutual confidence impossible at the time of future peace

os

ANNEX II

EXTRACT OF THE REPORT OF THE

GENERAL-SECRETARY OF UNITED NATIONS

"RESPECT FOR HUMAN RIGHTS

IN ARMED CONFLICTS"

Doc. A/S052, XXVth Session of

the General Asroembly

B. Rights and obli~ations of combatants

99. As was stated in paragraph 178 of the preliminary report, there seems to be no pressing need for revision of the Geneva Conventions on the protection of wounded, sick and ship-wrecked combatants. Some questions concerning the protection of prisoners of war will be dealt with in chapter VI below. The following paragraphs of the present chapter will deal with the protection of combatants in the field who are neither sick nor wounded, nor prisoners of war in tile sense of the Geneva Conventions.

lce. As regards combatants in the field, their destruction or incapacitation may be, of course, essential to the attainment of military objectives. However, article 22 of the Hague Regulations of 1907, repeated in General Assembly resolution 2444 (;;;a (I), stresses that the choice of means of injuring the enemy is not unlimitefl., and the problem arises of identifying and prohibiting those means which entail ~necessary suffering and shock the conscience of mankind. The relevant rules ~e contained essentially in article 23 (b), (c), (d) and (f) of the Hague Regulations of 1907, quoted in paragraph 91 above.

(i) Prohibition to kill or wound the enemy "treacherously" (article 2'5 (b) and ~_ the Hag\le Regulations)

101. It has been pointed out, notably by experts of the International Committee of the Red Cross attending the twenty-first International Conference of the Red Cross in 1969, that it is often difficult to draw a distinction between what is "treaChery" and what is a "ruse of war" which is admissible under article 24 of the Hague Regulations. The difficul~y has certainly been increased by some modern methods of combat, essentially guerrilla warfare, which rely heavily on "ruses of war".

102. As was felt by the experts c~nvened by the International Committee of the Red Cross in 1969, the prohibiticn of the improper use of the white flag and of the Red Cross emblem, contained in article 23 (f), should be strongly reaffirmed.

09

lC3. As regards the improper wearing of the military insignia and uniform of the enemy, also referred to in article 23 (f), the above-mentioned experts did not reach any definite conclusions. After the Second World War, it had been held in the case of etto Skorzeny ~ that the wearing of eneu~ uniform was not illicit when resorted to with a view to misleading the enemy prior to combat. This judgement appears to correspond to a custom in maritime warfare whereby the enemy flag may be flown before combat. This matter, among others, may call for further study with a view to formulating, if possible, a more precise rule.

(ii) Prohibition to kill or wound an enemy who surrenders (article 2, (c) of the. JLa-gue Iieg,ula_tions)-----­

lc4. Article 23 (c) of the Hague Regulations refers to an enemy "who, haVing laid do,1n his arms, or having no longer tleans of defence, has surrendered at discretion ". Literally, this provision might be interpreted as meaning: either that a combatant is deemed to surrender as soon as he lays down his arms or as soon as he has no lonber any means of defence; or that intention to surrender must be expressed in addition to the loss or abandonment of weapons. In spite of various usages in 1.1,is respect, no international instruments in force describe the ways in which a com"t'atant may convey his intention to surrender.

lC5. Experts of the International Comnlittee -of the Red Cross felt that the rule laid down in article.23 (c) of the Hague Regulations was implicitly dealt with, ir, general terms, in article 4 of Geneva Convention III relative to the Protection of Prisoners of Har. 'l'his article recognizes the~status of prisoners of war, inclUding the right to life (article 13), to the combatants fulfilling the conditions laid down therein, who "have fallen into the power of the enemy". It may be noten that, literally, this provision does not require a positive act of surrender. The term "fallen into the power of the enemy" replaced the word "captured" which appeared in the previous 1929 Convention, and was intended to convey a somewhat broader meaning. ~ There ~ay still be some doubts, however, whether the article becomes operative in all cases from the moment a disabled combatant is surrounded or otherwise within the range of the weapons of the enemy or whether it requires actual apprehension by the enemy. Furthermore, verification of the fulfilment of the conditions laid down in article 4 requires a minimum of time during which full entitleQent to the status of prisoner of war may be in doubt. Further mention of these problems is made in chapter VI of this report concerning the protection of prisoners of war.

lC'6. Considering the lack -of precision in some respectE: of the above-lilentioned articles, the preliminary report by the Secretary-Gene~al5£Y as well as the 1969 . report of the Experts of the International Committee of the Eed Cross 2Y suggested that an attempt be made to define in concrete terms how a combatant can clearly i,laLe 1mo;m his intention to surrender. i:ore precision in this respect may result in the saving of lives and ensuring a greater degree of protection to a wounded combatant. Particular attention was-paid to -the case of the airrl1an in distress vho lands by parachute to save his life and who should not be confused with those still engaged in hostilities, such as armed parachutists ~ho land to attack.

Law Reportl:; of Trial!; of Uar Criminals, published by the United Nations War Crimes Commission, EMSO London 1949. Comm~ntary of the Geneva Conventions, vol. III, article 4, International Commit~of the Red Cross, Geneva, 1960.

2S'J A/772C, para. 181.

51/ X;:Ist International Conference of the Red Cross, document D.S. 4 a, b, e.

010

IC.7. Further to the suggestion mentioned in the preceding paragraph, one may consid.er elaborating or supplementing the existing rules on the basis of the f'olloving tvo principles:

(a) It should be prohibited to kill or harm a combatant who has obviously laid dOwn his arms or who has obviously no longer any weapons, without need

for any expression of surrender on his part. Only such force as is strictly necessary in the circumstances to capture him should be applied.

(b) In the case of a combatsn,t who has still some weapons or whenever, as frequently happens, it cannot be ascertained whether he has weapons, an expression of surrender should be required. Rules should be formulated to define as precisely as possible how the intent to surrender may be clearly conveyed. i:odern conditions, where combatants may be separated by great distances, shouldbe taken into account; and modern means of communications (radio) should be ~sed in addition to the traditional ones (white flag etc.). If a combatant is overpohlered and his defeat appears imminent, he should be invited to surrender with a promise that he would enjoy thereafter all the applicable benefits of the lal'ls and customs of war -(see sub-section (iii) below).

(iii) Prohibition to declare that uarter will be givenll (article 23 (d). of the Hague Regulations

108. lhe opinion has been expressed, notably by the Experts of the International Co~mittee of the Red Cross in 1969, that the wording of this rule was outdated and called for a reformulation. The rule expressed in article 23 (d) is nevertheless important, since one of its purposes is to avoid pushing the enemy into a desperate fight and thereby to shorten the period of actual combat. The rule contained -in article 23 (d) of the Hague Regulations does not appear in specific terms in the Geneva Conventions.

109. The main shortcoming of article 23 (d) seems to be that it imposes only a negative obligation upon the states Parties•. It may be considered desirable to strengthen this provision by a clause which would require positively a proclamation that the lives of the combatants would be protected, in accordance with the laws and customs of war, after surrender and/or capture.

110. It should be stressed that the reaffirmation of, or amendments to the rules mentioned above should be without prejUdice to the right of the States Parties to punish, as permitted or imposed by international law, individuals who have violated the laws and customs of war. Such punishment should be inflicted, however, after a fair trial with all the guarantees required under international law.

Ill. The preceding review of the existing substantive rules concerning the protection of combatants, has brought out, inter alia, the following suggestions for a further elaboration or amendment to s~of those rules:

(a) That the definition of protected combatants be clarified and, if possible, extended (see also chapter IX on guerrilla warfare);

(b) That the definition of inacirnissible lItreacherousll conduct between combatants be further elaborated, attention being paid, in particular, to the problem of improper wearing of the enemy uniform;

011

(c) That the prohibition of killing or wounding the disabled enemy (article 23 (c) of the Hague Regulations) be further elaborated and illustrative definitions be given of how a combatant could clearly make known his intention to surrender (see paragraph 107 above);

(d) That article 23 (d) of the Hague Regulations prohibiting ueclarations that IIno quarter will be given ll be reformulated and replaced by a rule imposing '.J.pon the States Parties the obligation lito proclaim that the disabled enemy will be protected under the laws and customs vf war".

112. It may be stated that the application of the existing provlsl0ns for the protection of combatants, and of such revised or new provisions as might be adopted for that purpose, would be effectively assisted by the availability of international procedures intended to verify their implementation. It would also have to be recognized that the effectiveness of such procedures would be mitigated by the practical difficulties and complexity of the task of ensurine the observance of humanitarian rules in conditions of actual combat. Bearing in mind these considerations, the function of contributing to the extent possible in the application of the provisiuns referred to above might possibly be ir.cl~ded in the terms of reference of such international agency as might be entrusted with facilitating, through appropriate supervision and control, the application of humanitarian rules in general. In this connexion, reference is made to the contents of chapter XI below.

113. The inference may be drawn from various parts of the preliminary 'report that the 1907 Hague Regulations would benefit from, and would be strengthened by their up-dating and adaptation ~o modern conditions and developments in ~he field of armed conflicts. It was stated in paragraph 180 of the preliminary report that

.some of the provisions of the Hague Regulations relating to combatants would ilin any event need re-examination, followed by elaboration and reformulation in a wording better adapted to present conditions". As was'stated in paragraph 35 above, the same observation would be valid as regards some of the provisions of the Hague Regulations affecting civilians. Support fJr the idea of effecting appropriate revisions in the Hague Regulations as a whole has been ;orthcomin~

from various competent sources including the experts consulted by the Secretary­General. Accordingly, if the usefulness and advisability of such an initiative commend themselves to the General Assembly, the task of revising, adapting and completing the Hague Regulations, in the light of the relevant provisions 0f the Geneva Conventions and other international instruments, after adequate preparation, might oe undertaken by a conference convened by an interested Member State or by the General Assembly itself. The outcome might possibly be an additional Protocol to the Geneva Convention or an independent international instrument,

012

ANNEX III

ANNEX TO THE HAGUE CONVENTION

OF OCTOBER 18, 1907

REGULATIONS CONCERNING THE LAWS

AND CUSTOMS OF WAR ON LAND

Means of Injuring the Enemy ; Sieges and Bombardments

ARTICLE 22

The right of belligerents to adopt means of injuring the enemy is not unlimited.

ARTICLE 23

In addition to the prohibitions provided by special Conventions, it is especially forbidden;

(a) To employ poison or poisoned weapons. (b) To kill or wound treacherously individuals belonging to the

hostile nation or army. (c) To kill or wound an enemy who, having laid down his arms, or

having no longer means of defence, has surrendered at discretion.

(d) To declare that 110 quarter will he givcn. (e) To employ arms, projectiles, or material calrulated to cause

unnecessar~' suffering. (f) To make improper use of a flag of truce, of the national flag or

of the military insignia and uniform of the enemy, as well as the distinctive badges of the Gene\'a Convention.

(g) To destroy or seize the enemy's property, unless such destruction or seizure he imperatively demanded by the necessities of war.

(11) To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.

A belligerent is likewise forbidden to compel the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commence­ment of the war.

ARTICLE 24

Ruses of war and the .;mployment of measures necessary for obtaining information about the enemy and the country are considered permissible.

013

ARTICLE 25

The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.

ARTICLE 26

The officer in command of an attacking force must, before commencing a bombardment, except in cases of assault, do all in his power to warn the authorities.

ARTICLE 27

In sieges and bombardments all necesary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes.

It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.

ARTICLE 28

The pillage of a town or place, even when taken by assault, is pro­hibited.

Spies

ARTICLE 29

A person can only be considered a spy when, acting clandestinely or on false pretences, he obtains or endeavors to obtain information in the zone of operations of a belligerent, with the intention of communi­cating it to the hostile party.

Thus, soldiers not wearing a disguise who have penetrated into the zone of operations of the hostile army, for the purpose of obtaining information, are not considered spies. Similarly, the following are not considered spies: soldier, and civilians. carrying out their mission openly, entTllsted with the delivery of despatches intended either for their own army or for the enemy's army. To this class belong likewise persons sent in balloons for the purpose of carrying despatches and, generallv, of maintaining communications between the different parts of an army or a territory.

ARTICLE 30

A spy taken III the act shall not be punished without previous trial.

ARTICLE 31

A spy who, after rejoining the army to which he belongs, is sub­sequently captured by the enemy, is treated as a prisoner of war, and incurs no responsibility for his previous acts of espionage.

014

Flags of Truce

ARTICLE 32

:\ per~l)11 is regarJcd as a bearer of a flag of truce who has heen anthorizrd by one of the belligerents to enter into communication with the other, and who al!\'al1l'es bearing a white flag. He has a right to inviolability, as well as the trumpeter, bugler or drummer, the flag­bearer and the interpreter who may accompany him.

ARTICLE 33

The commander to whom a bearer of a flag of truce is sent is not in all cases obliged to receive him.

He may take all the necessary steps to pre\'ent the bearer of a flag of truce taking advantage of his mission to obtain information.

In l'ase of abuse, he has the right to detain the bearer of a flag of truce temporarily.

AlnIl"LE 34

The bearer of a flag of trucr losrs his rights of inviolability if it is proved in a clear and incontestable manner that he has taken advan­tage of his pri\'ileged position to pro\'okc or commit an act of treason.